The prevalence of sex in law firms shown in
TV shows like "L.A. Law" may or may not be accurate
depending on the office, but the sexual ethics of real lawyers
deserve to be on trialor at least be addressed, according
to members of a panel sponsored by Phi Delta Phi at the Law School
Oct. 28.

The panel, moderated by law professor Earl
Dudley, also included law professor Stephen
Smith, U.Va.
Patent Foundation executive director Robert MacWright, and
Phi
Delta Phi executive director Tim Wheat. All agreed that sex
between clients and lawyers, lawyers and employees, or even between
two lawyers can create considerable ethical, professional and
legal risks for those involved.

Sex between a client and lawyer "can pose
significant dangers to both the client and the lawyer," Dudley
said. The client is often the vulnerable person in the relationship
and can even personally depend on the lawyer, especially in family
law or domestic relations cases. The lawyer "needs a certain
amount of emotional distance" to keep his client's interests
in mind as well.

Dudley said he knows of some happy lawyer-client
marriages, but often sex between lawyers and clients can strain
the professionalism of the lawyer and even those around him. He
recalled a case that happened over 20 years ago in which a senior
partner in a firm represented a client who brought substantial
fees to the firm. The partner learned that a younger lawyer also
on the case had a "torrid affair with the client." He
considered this an obvious breach of professionalism and took
him off the case. But the client stormed in and demanded that
he be put back on the case or the senior partner was off the case.
In the end the younger lawyer was restored to the case.

Robert MacWright (left)
said different office environments can affect how office relationships
are accepted. Tim Wheat said lawyer-client relationships may
enforce negative views of lawyers.

Wheat, who said he saw first-hand the perils
of lawyers who engage in sexual relations with clients, said it's
"always an invitation to disaster." He added that it's
against the canon of ethics in most areas, and can give ample
supporting evidence to those who have negative views of lawyers.

"Lawyers are often seen as takers rather
than givers" Wheat said, and the perception of a lawyer taking
advantage of a client through sex only supports that opinion.
As a lawyer, "you literally have the power to change someone's
life forever," he said, especially in family law cases. "It
is incumbent upon the lawyer never to abuse that supreme position."

Smith drew a connection between what he saw
as an overall lack of professionalism in big law firms and the
lack of regulation of lawyers' behavior, in comparison to the
regulation of doctors' behavior. Unlike medicine, law is a "business,
plain and simple, and it's a shame," he said, noting that
the emphasis in big firms is on the billable hour. He requires
students taking his seminar to watch The Devil's Advocate, a film
starring Al Pacino as the devil, who chooses a mega law firm as
his vehicle for ruining all humankind.

Sex between lawyers and clients has been called
"'our business's dirty little secret,'" Smith said.
Clients "are people who tend to be vulnerable to lecherous
lawyers."

Smith noted that the Hippocratic Oath forbids
doctors from engaging in sexual relations with patients, and it
was installed over 2,000 years ago. Today in California a doctor-patient
sexual relationship warrants a $10,000 fine and up to three years
in prison.

"Our business, of course, has lagged far
behind," he said. New York, for example, limits the rule
barring sex to clients in domestic relations cases. California
laws are vaguer, but do forbid coerced sex. At least 20 states
have flat prohibitions against lawyers having sex with clients,
he said. Similarly, some universities prohibit professors from
having sex with students, but others, like the Law School, say
professors can't have sex with students who are in their class
or who are under their power in some way.

"Are we doing the right thing . . . or
is this just sexual McCarthyism run amok?" Smith asked about
such regulations. Smith said lawyers should make a choice about
which is more importantrepresenting the client, or having
sex with the client. "You don't get to screw the client twice,"
he said. "If you want to sleep with somebody, don't represent
them."

He said banning sex is "not just a paternalistic
exercise." If clients have sex with lawyers, they won't be
able to exercise control over their representation. "How
do you separate pillow talk . . . from official lawyer-client
discussions?" He pointedly looked at students in the audience,
"you all need to know that the B-pluses you get [are] because
you deserve them."

While it doesn't pose as many ethical questions
as lawyer-client relationships, sex between lawyers "can
provide both strains on the professional as well as the personal
relationship," Dudley said. Charges of jealousy or favoritism
are more easily lobbed by other lawyers in the firm who are aware
of such a relationship. If lawyers from different firms or lawyers
on opposing sides of a case have a relationship, "confidentiality
can be compromised."

Relationships between a lawyer and non-lawyer
in the firm could invite exposure to harassment or liability suits
if the relationship sours. "This is not to say that all sex
involving lawyers is bad," Dudley said. About a year after
former Supreme Court Justice William J. Brennan's wife died of
cancer, he married his secretary of over 20 years. Dudley said
both marriages were happy.

MacWright said he has seen examples of relationships
between lawyers in good and bad situations. When he was an associate
in Kenyon & Kenyon in Manhattan, it was a male-dominated workplace
with no female partners. There was also a "high incidence
of sexual relations between women who worked at the firm and the
male lawyers who had all the power." One female associate
at the firm was having an affair with her boss, the most respected
lawyer in the firm, although both denied it. MacWright said the
associate felt the affair gave her a stronger voice and lorded
her power over the other associates; for example, she often tossed
her colleagues' draft briefs in the trash. Two years later, the
relationship ended and her abusive behavior became grounds for
her dismissal.

At the same firm, lawyers felt strangely about
a senior paralegal who had had affairs with two partners at different
times; both partners had gotten brain cancer during the affairs.
She ended up choosing to leave the firm after working there for
20 years.

MacWright suggested the closed environment of
Kenyon gave rise to more unhealthy relationships. When he worked
at Skadden, Arps, the power structure was open to women, and it
wasn't unusual for some of the partners to be gay. There were
all kinds of sexual relationships going on, he said, but because
it wasn't a power tool, it didn't have the same impact on the
workplace environment.

With the long hours and travel that are often
involved in the profession, MacWright said, "there's much
more of an opportunity for sex between lawyers in the legal environment."

Although some firms may frown on in-office dating,
Smith said he opposed a flat ban. "Even if you can enforce
it, I think it's unwise," he said, although he jokingly criticized
the idea of two lawyers in a relationship together. "You
should have one real person in every relationship," he said.

Even the appearance of impropriety can impact
your case, MacWright said. During a trial in Delaware, MacWright
and his team went to a restaurant and saw the defendant's team
walk in and eat with the court clerk, who handles the jury during
the case. The appearance that she had a relationship with the
lawyers, although she did not, got her fired when MacWright's
team brought it to the judge's attention. The judge cited the
defense's ill behaviorincluding the court clerk outingin
his opinion in favor of MacWright's team.

So what do you do if you find yourself in such
an ethical dilemma? Keeping it quiet "knowing it may not
be the right thing to do" is worse than airing a private
relationship, Wheat said. But even if you disclose to a judge
a relationship with the client, there's no guarantee you'll be
excused from the case, he added. If you represent the client alone
and have a relationship, MacWright said, you may be liable for
malpractice, but handing the case over to a more senior lawyer
if you work on a team may mitigate your risk.

"If it's true love, you'll gladly
surrender the billable fee," Smith said. "If we want
to be a profession, we have to behave like a profession." Reported by
M. Wood